The defendants have argued that this Court is without authority to entertain a collateral attack on a court-martial conviction by way of mandamus. The history of the limits on collateral review of court-martial convictions is a somewhat tangled web. The military court system has traditionally been viewed as being as wholly distinct from the federal civil courts as the courts of the state are. The opinions on its exact status have ranged, in recent years, from those of Mr. Justice Vinson and Mr. Justice Minton in Burns v. Wilson, 346 U.S. 137, 73 S. Ct. 1045, 97 L. Ed. 1508 (1953), granting the military system an aura of sovereignty even superior to that of a state,
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to those of Mr. Justice Douglas in his concurring opinion in Parisi v. Davidson, 405 U.S. 34, 92 S. Ct. 815, 31 L. Ed. 2d 17, (1972), that the whole military "is simply another administrative agency, insofar as judicial review is concerned." Id. at 51, 92 S. Ct. at 825.

Smith v. Whitney, 116 U.S. 167, 6 S. Ct. 570, 29 L. Ed. 601 (1885) involved the issue of whether a federal court could issue a writ of prohibition to forbid trial by a court-martial which lacked jurisdiction. The court specifically reserved judgment on the propriety of such a writ, finding that the court-martial in question had jurisdiction.

The availability of habeas corpus was again affirmed in principle in United States v. Grimley, 137 U.S. 147, 11 S. Ct. 54, 34 L. Ed. 636 (1890), Johnson v. Sayre, 158 U.S. 109, 15 S. Ct. 773, 39 L. Ed. 914 (1895), and Carter v. McClaughry, 183 U.S. 365, 22 S. Ct. 181, 46 L. Ed. 236 (1902), and the propriety of a suit for back pay was affirmed in principle in Swaim v. United States, 165 U.S. 553, 17 S. Ct. 448, 41 L. Ed. 823 (1897). But McClaughry v. Deming, 186 U.S. 49, 22 S. Ct. 786, 46 L. Ed. 1049 (1902) was in many ways the landmark in this line of cases, for it was in this case that the Supreme Court found a lack of court-martial jurisdiction for the first time, reversing the Eighth Circuit and ordering habeas corpus. Here is the affirmance that what the court had held in principle it would apply in fact in the appropriate case.

The question of the propriety of mandamus as a remedy against an improper court-martial proceeding does not appear to have ever arisen in the Supreme Court. This is not surprising, since prior to the passage of 28 U.S.C. § 1361 by Congress in 1962, it was held that the federal courts were without authority to entertain actions for mandamus as an original writ. See McIntire v. Wood, 7 (U.S.) Cranch 504, 11 U.S. 504, 3 L. Ed. 420 (1813), and Marshall v. Crotty, 185 F.2d 622 (1 Cir., 1950). The exception to this rule involving the courts of the District of Columbia, see Kendall v. United States, 12 (U.S.) Pet. 524, 37 U.S. 524, 9 L. Ed. 1181 (1838), does not appear to have been either widely known or widely utilized. However, it is interesting to note that in the two related cases of United States ex rel. Creary v. Weeks, 259 U.S. 336, 42 S. Ct. 509, 66 L. Ed. 973 (1922) and United States ex rel. French v. Weeks, 259 U.S. 326, 42 S. Ct. 505, 66 L. Ed. 965 (1922), which dealt with actions by the Army Classification Board, the Supreme Court cited the court-martial line of cases, habeas corpus, trespass, et al, for the proposition that mandamus could lie only to test the jurisdiction of a military tribunal (and by necessary inference, would lie then). It is true that mandamus has never been directly approved as an avenue of collateral attack upon the validity of a court martial conviction. Yet a review of the early cases impels the conclusion that, from the beginnings of our legal system, the absolute lack of the traditional accoutrements of jurisdiction could be litigated by whatever means was most handy; trespass d.b.a., replevin, assault and battery, false imprisonment, habeas corpus, prohibition, suit for back pay. Never has the Supreme Court said that any means of raising the issue was improper; rather it has always decided the issue. The same course was adopted as late as United States v. Augenblick, 393 U.S. 348, 89 S. Ct. 528, 21 L. Ed. 2d 537 (1969), in the context of a suit for back pay. It is true that habeas corpus has become the primary way to test the legal sufficiency of court-martial proceedings. It has, in the course of time, expanded beyond what Lord Mansfield would have recognized as questions of jurisdiction. See generally the discussion of the scope of habeas corpus in the context of court-martial judgments in Levy v. Parker and Resor, 478 F.2d 772 (3rd Cir., 1973). And the suit for back pay has filled most needs when the custody requirements of habeas corpus were not met. Yet this Court believes that, at least in a case concerned with traditional concepts of jurisdiction, mandamus will lie to test the jurisdiction of a court-martial. Doubtless a District Court should pursue such a course only in the most exceptional circumstances, but for certain reasons of procedure and judicial economy, this case appears to present such circumstances.

This Court sees no impediment to the use of mandamus directly, and not merely on the board for the correction of records, arising out of 10 U.S.C. § 876. The provisions of § 876 embodied a concept of legal finality, and must be read to encompass the normal collateral exceptions to such finality. One of those exceptions is and has always been that complete lack of jurisdiction in the narrow sense may be raised in any available proceeding. The Supreme Court has held that this language in § 876 was not intended to preclude habeas corpus. Gusik v. Schilder, 340 U.S. 128, 71 S. Ct. 149, 95 L. Ed. 146 (1951). It is true that habeas corpus is a constitutionally protected remedy. However, the Supreme Court has had the opportunity to hold that a suit for back pay attacking a court-martial conviction was prohibited by § 876 and has chosen not to do so. Augenblick, supra. The suit for back pay attack has always been regarded as unaffected by § 876 in the Court of Claims, the forum which, until the 1964 amendment to the Tucker Act, 28 U.S.C. § 1346, had exclusive jurisdiction over such suits, and the forum in which the issue has generally been raised since then. See the Court of Claims opinion in Augenblick, 377 F.2d 586, 180 Ct. Cl. 131 (1967) and the cases cited therein. It is the opinion of this Court that these cases are correct, and further that if the constitutionally unprotected suit for back pay is not rendered unavailable by § 876, neither is jurisdiction to entertain direct mandamus in an appropriate case.

The argument against reading § 876 as a bar to either direct mandamus or a suit for back pay was stated succinctly by the Court of Claims in Augenblick as follows:

This language was relied upon by the D.C. Circuit in Kauffman v. Secretary of the Air Force, 135 U.S. App. D.C. 1, 415 F.2d 991 (1969) to support its conclusion that habeas corpus is not the exclusive exception to § 876. Both the Kauffman case and the earlier case to the same effect of Gallagher v. Quinn, 124 U.S. App. D.C. 172, 363 F.2d 301 (1966) involved "declaratory judgment" and "mandatory injunction" requests whose jurisdictional basis can only have been 28 U.S.C. § 1361.

The Third Circuit has recognized without disapproval in Ragoni, supra, that "several courts have held that Article 76 (§ 876) was not intended to bar any collateral attack on court martial decisions", citing Kauffman, supra, and the Court of Claims opinion in Augenblick, supra. Further, Kauffman was cited by the Third Circuit with general approval in Levy v. Parker and Resor, supra. It is interesting to note that in Smith v. McNamara, supra, the 10th Circuit, in the context of a case involving mandamus to a board for the correction of records, did not in its opinion follow the narrow language of Ashe, but the broad ideas of Augenblick and Kauffman.

The Ashe decision may be read as holding no more than that jurisdiction exists to mandamus the board for the correction of records, but not that jurisdiction does not exist to mandamus the Secretary or other official directly in an appropriate case. This Court finds nothing in Haines or Ragoni to indicate that the Third Circuit has specifically adopted the view that mandamus to the board for the correction of records is the only action for which this Court has jurisdiction under § 1361. The existence of the Board may raise questions under the exhaustion doctrine, but that is a separate issue. To hold that mandamus to the Board is the only action over which this Court has jurisdiction, exhaustion aside, would unnecessarily tie the hands of the Federal Courts and is not a construction of the statute which should be adopted absent the clearest expression of congressional purpose. Such mandamus is only a thinly veiled use of the mandamus power to examine court-martial proceedings in any event. As will be discussed more fully below, in some cases it forces those Boards to make preliminary decisions on legal issues outside their competence, and makes the outcome of the litigation dependent to some extent on the skill of the parties in creating a record on a legal issue before a tribunal with no expertise on that issue.

We need not go so far as the courts have gone in Kauffman and Gallagher in this case, and hold that all "constitutional" issues may be raised by direct mandamus. We deal here only with jurisdiction in the narrow traditional sense. Such a case does not raise the problem of relitigation of factual issues that seemed to bother the Third Circuit in Ragoni. At any rate, such review of jurisdiction has traditionally been available in whatever proceeding was most convenient, as we have seen, and if Congress had wished to eliminate this by 10 U.S.C. § 876, and thereby put a punitively discharged or unincarcerated person convicted by an illegally convened authority on such a radically different footing than a person "in custody", the Court feels it would have said so more clearly and directly. This Court has jurisdiction over this case under 28 U.S.C. § 1361.

The defendants have also challenged this court's jurisdiction to entertain the claim of the named plaintiffs for back pay under the Tucker Act, 28 U.S.C. § 1346. The 1964 amendment to the Tucker Act, gave this Court concurrent jurisdiction with the Court of Claims on this type of action in any civil action in which less than $10,000 was at issue. As we have seen, all of the relevant precedents in the Court of Claims favor the Court's jurisdiction in this circumstance under the Tucker Act. The possibility of such an action was recognized by the Supreme Court without adverse comment in Augenblick, supra, at 351 of 393 U.S. 348, 89 S. Ct. 528. The above discussion makes clear that the Court is confident that its jurisdiction under the Tucker Act is not affected by 10 U.S.C. § 876. There is no doubt that, since the named plaintiffs make no claim for a sum greater than $10,000, this Court has jurisdiction over their cases. Perry v. United States, 308 F. Supp. 245 (D. Colo., 1970), aff'd. 442 F.2d 353 (10th Cir., 1971). Defendants have argued that the class nature of the complaint in this action makes it a suit for a sum in excess of $10,000. This is not a challenge to the Court's jurisdiction to hear the claims of the named plaintiffs, but to the Court's jurisdiction to hear a class action pursuant to the power conferred by § 1346. The defendants' position appears to be incorrect. See footnote 5 infra. The Court need not decide this issue, however, as the Court does not intend to accord class action treatment to the Tucker Act claims. This case requires class action treatment, binding on all members of the class without the chance to opt out of the class, to lay it to rest once and for all. It is probable that the class contains persons whose claims are, at least arguably under the precedents of the Court of Claims, in excess of $10,000. Under the Tucker Act this Court has no jurisdiction to hear their cases. They might come before the Court if they would waive any excess, but the Court cannot, consistent with due process of law, make waiver by fiat, and attempting to get such waiver would require notification of the class which would at best slow this case down for a long time. Even if the class action were to proceed under F.R. Civ. P. 23(b) (1) or (b) (2), there is no jurisdiction to adjudicate and bind those who make claims in excess of $10,000 under the Tucker Act. The case would not be decided with the finality it demands. However, there are no such jurisdictional problems with the mandamus action. This can be adjudicated fully under Rule 23(b) (2), as discussed more fully infra, and the entire class bound whatever the ultimate result. This is why the Court has gone to such pains to vindicate its mandamus jurisdiction in this most appropriate case.

This is probably the best point to raise the problems posed by the case of Carter v. Seamans, 411 F.2d 767 (5th Cir. 1969).
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Carter v. Seamans dealt with an action by a discharged Air Force Captain seeking to mandamus the Secretary of the Air Force to correct records pursuant to 10 U.S.C. § 1552. Plaintiff sought to be reinstated in the Air Force, promoted to the rank of Full Colonel, and have all his back pay and allowances paid from the date of his allegedly illegal discharge. The claim if paid in full would have approximated $135,000. The Court concluded in that case that the suit was most accurately characterized as a suit for back pay in the guise of a mandamus action. The Court correctly saw that to allow Carter's litigation as framed would virtually eliminate the $10,000 limitation on the jurisdiction of the District Courts under 28 U.S.C. § 1346. The Court dismissed the action and sent Mr. Carter to the Court of Claims, holding that "in cases of the type now under consideration the monetary limitation imposed on its jurisdiction by section 1346 must also be held to apply to a mandamus proceeding brought pursuant to section 1361." id. at 775.

There is a distinct difference between returning a fine and litigating all the arguable elements of damage in a back pay case. It is true that the outcome of the mandamus class action may establish liability by res judicata in future back pay cases in the District Courts or in the Court of Claims. That result is merely the outcome of the common factual basis of the distinct claims. The scope of these actions is not necessarily coterminus in all contexts. When they are in a given case, this does not defeat the jurisdiction of this Court to decide a case properly before it. Besides, the limitation which Congress has placed upon this Court in § 1346 does not really go so much to who should determine liability as who should have the power to determine the proper elements and magnitude of the award. Any members of the class who might seek to claim more than $10,000 in damages aside from the return of fines or forfeitures will still have to seek their money in the Court of Claims. Nothing in § 1346 or Carter v. Seamans does, or should be read to, limit the availability of class treatment in a case such as this.

The differences between the exhaustion doctrines and the abstention doctrines have not always been recognized. See Parisi v. Davidson, 405 U.S. 34, 92 S. Ct. 815, 31 L. Ed. 2d 17, especially footnote 6. When a Court chooses not to exercise jurisdiction in favor of another tribunal which can make a binding judgment on an issue not subject to any sort of review by the first court, it abstains. Thus, in a typical situation where a U.S. District Court faces a Constitutional issue based upon the construction of a state statute which could be construed to avoid the issue, the Court may abstain in favor of a state court, awaiting a binding construction of the statute. However, when a court chooses not to exercise jurisdiction in favor of another tribunal, knowing that the decision of that tribunal may later be reviewed in one way or another in an appropriate proceeding between the same parties in the first court, the court is requiring exhaustion of other available remedies.
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The first alternative remedy pressed by the defendants as available presents an interesting exercise in classification. Defendants say that plaintiffs may apply for writs of coram nobis in the Court of Military Appeals. If they did, and if they lost, would that decision be binding on this Court in proceedings such as these as res judicata ? The answer appears to be no. The issue in this case is the availability of collateral relief from an erroneous exercise of jurisdiction within the military justice system. This opinion has spoken at length of the propriety of such relief by the civil courts. For the Court of Military Appeals to affirm the existence of jurisdiction does no more than add one more decision by the military justice system in its own favor. Coram nobis proceedings are not binding in proper collateral procedures any more than the original decision is binding. Thus denial of coram nobis in a state court does not foreclose federal habeas corpus. The decision of the Court of Military Appeals would probably be correct and it would be entitled to great respect and consideration, but it would not constitute res judicata if any collateral review of court-martial jurisdiction is ever proper. The other two alternative remedies pressed, review by the Judge Advocate General under 10 U.S.C. § 869, and resort to the Board for the Correction of Naval Records, previously discussed, are clearly administrative and reviewable here, so that we deal exclusively with the question of whether to require exhaustion of other available remedies. This Court does not believe that requiring resort to any of the proposed remedies is required by the policies of the exhaustion doctrine or is in the best interests of justice in this case.

Further, this case no longer concerns any issues in which the special expertise of the Court of Military Appeals would be of value. It has spoken on the issues of jurisdictional defects. The issue of retroactivity, insofar as it has not spoken on that issue in the recent case of U.S. v. Ferry, 22 USCMA 339, 46 CMR 339 (1973), requires no special expertise, difficult though the question may be. The Supreme Court has always been sensitive to the friction which might arise between the civilian courts and the military courts if the civilian courts prejudged issues within the special sphere of competence of the military courts before the military courts had had an opportunity to speak upon those issues. But where the issues involved in the case were not within such a special sphere, the court has been much less ready to find that comity between the two court systems requires exhaustion through the military courts first. Compare Noyd v. Bond, 395 U.S. 683, 89 S. Ct. 1876, 23 L. Ed. 2d 631 with Toth v. Quarles, 350 U.S. 11, 76 S. Ct. 1, 100 L. Ed. 8 (1955) and the other cases cited in footnote 8 of Noyd v. Bond at page 696, 395 U.S. 683, 89 S. Ct. 1876, 23 L. Ed. 2d 631. This case in its present posture falls into the latter category. Further, insofar as the proper consideration in deciding whether to require exhaustion of military court remedies is the prevention of friction between the military court system and the civilian court system, there appears little likelihood of friction between the Court of Military Appeals and the civilian courts over our failure to send it the pretty package of a potential 30,000 or so applications for coram nobis.7

Further, even in the area of its greatest responsibility and expertise, revealing administrative decisions, resort to the board is not always required before coming to court. Compare McCurdy v. Zuckert, 359 F.2d 491 (5th Cir., 1966) with Ogden v. Zuckert, 111 U.S. App. D.C. 398, 298 F.2d 312 (1961). More importantly, the Supreme Court has recognized that in many cases to require application to the board is not appropriate and not required by the exhaustion concept. See the order vacating the Ninth Circuit's decision requiring such exhaustion in Craycroft v. Ferrall, 397 U.S. 335, 90 S. Ct. 1152, 25 L. Ed. 2d 351 (1970) and the explanation of that action in Parisi v. Davidson, 405 U.S. 34, 38 footnote 3, 92 S. Ct. 815, 31 L. Ed. 2d 17. There appears even less reason to require exhaustion when the pertinent issue is a very technical legal issue quite outside of the special competence of the Board. The Court is aware that the D.C. Circuit in Owings v. Secretary of the Air Force required application to the Board under the exhaustion principles without opinion. See 145 U.S. App. D.C. 76, 447 F.2d 1245, 1249, footnote 8. But the Court is also well aware of the admonition of McKart v. United States, 395 U.S. 185, 89 S. Ct. 1657, 23 L. Ed. 2d 194 (1969) that the exhaustion doctrine "is applied in a number of different situations and is, like most judicial doctrines, subject to numerous exceptions. Application of the doctrine to specific cases requires an understanding of its purposes and of the particular administrative scheme involved." id. at 193, 89 S. Ct. at 1662. Whatever the merits of requiring resort to the Board may be in a case involving collateral attack upon a court-martial not based on jurisdictional grounds, and having relevant elements arguably falling within the special expertise of the board, the Court feels that such resort is not required in the context of this case.

The Court is aware that it could have based its decision not to require exhaustion of presently available remedies on the proposition that such exhaustion is never required when the basis for the collateral attack on a court-martial is "jurisdiction." See for example, Autry v. Wiley, 440 F.2d 799 (1st Cir., 1971); Gorko v. Commanding Officer, 314 F.2d 858 (10th Cir., 1963); and the many cases collected in Moyer, Justice and the Military, §§ 6-250 to 6-255. However, convinced as this Court may be that this case involves only a most narrow question of traditional jurisdiction, the scope of the term "jurisdiction" used in the cases, and the weakness underlying the policy that exhaustion is not required in cases attacking "jurisdiction" in some of its aspects, has justified the demonstration that exhaustion of remedies should not be required in any event.

One further policy factor militates against requiring exhaustion in this case, even if such exhaustion might arguably be otherwise required. None of the alternative remedies pressed by the defendants contains any mechanism for the class handling of the dispute, and some form of class treatment is without doubt both the most convenient and the most just way to dispose of the issues raised in this case.

We turn now to the substantive consideration of the case at bar. 10 U.S.C. § 823 reads:

(3) the commanding officer of a brigade, regiment, detached battalion, or corresponding unit of the Army;

(4) the commanding officer of a wing, group, or separate squadron of the Air Force;

(5) the commanding officer of any naval or Coast Guard vessel, shipyard, base, or station; the commanding officer of any Marine brigade, regiment, detached battalion, or corresponding unit; the commanding officer of any Marine barracks, wing, group, separate squadron, station, base, auxiliary air field, or other place where members of the Marine Corps are on duty;

(6) the commanding officer of any separate or detached command or group of detached units of any of the armed forces placed under a single commander for this purpose; or

(7) the commanding officer or officer in charge of any other command when empowered by the Secretary concerned.

(b) If any such officer is an accuser, the court shall be convened by superior competent authority, and may in any case be convened by such authority if considered advisable by him. Aug. 10, 1956, c. 1041, 70 A Stat. 44.

In 1963, the Court of Military Appeals decided U.S. v. Ortiz, 15 USCMA 505, 36 CMR 3. In that case it held that 10 U.S.C. § 823(a) (6) was not a direct grant of power to convene special courts-martial to any separate or detached military unit of less than roughly battalion size. In 1970, the Court of Military Appeals decided U.S. v. Greenwell, 19 USCMA 460, 42 CMR 62. In that case, the Court of Military Appeals decided that 10 U.S.C. § 823(a) (7) did not authorize the Secretary of the Navy to make a categorical or bloc grant of power to convene special courts-martial, and delegate the power to determine which commands qualified for category membership to flag or field officers. The Court of Military Appeals held that to "empower" a Commander, the Secretary must act personally re that Commander under § 823(a) (7). In 1973, the Court of Military Appeals decided U.S. v. Ferry, 22 USCMA 339, 46 CMR 339, holding that the jurisdictional nature of the Greenwell decision mandated its retroactivity, at least as far as the power of that Court to forbid current use of past convictions within the military justice system might go.

Plaintiffs argue that this Court is well-nigh bound to follow those decisions, and to enter judgment for plaintiffs almost in vindication of the authority of the Court of Military Appeals. Defendants argue that this Court is not so bound.

If the decision in the above cases had gone against plaintiffs, they would argue, and quite rightly, that this is a proper collateral proceeding and that the Court is not bound. One should not invoke merely a hollow doctrine of mutuality to decide that the Court is not bound in the present circumstance either however.

This discussion seems well reasoned and wise. It should be noted that the court did not intimate that it owed an absolute duty of obedience to the Court of Military Appeals, however. The Court of Military Appeals has no direct decisional responsibility for the civil implications of its rulings. To the court system which must bear the responsibility for determining and enforcing those civil implications must go the theoretical right to make independent decisions on all relevant issues of law as they apply to those civil effects. However, it is clear that the Court of Military Appeals should usually be followed. Only under the most unusual circumstances should the civil court substitute its judgment for that of the Court of Military Appeals. The substantive questions raised by the Ortiz and Greenwell decisions do not present such circumstances. The retrospectivity determination inherent in the Ferry decision does.

Moving to make our best myths reality has caused some problems, however. This case is one of those problems.
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The real reason for the idea of jurisdiction is to protect us all, not merely in the individual case, but over the long run, from unchecked power. Any application of prospectivity to a jurisdictional failure erodes that concept to some extent. Yet perhaps some very limited exception based on a sound analysis of the actual policies behind jurisdictional limitations, is more in keeping with both the approaches and the realities of 20th Century jurisprudence.

The plaintiffs claim that the courts-martial in question did not provide proper guilt-determining agencies. Yet, had the Secretary of the Navy signed the order authorizing the convening authority, as he could have, and as it appears from his actions since Greenwell, he would have, had he known he had to, everything would have been the same. If there is outcome-affecting command influence in such small units, it is still there. Either it is enough of a factor in itself to constitute a denial of due process or else the trials of the plaintiffs met due process standards on all outcome-affecting grounds, because the actual size of the units exercising special court-martial authority has not been changed by post Greenwell practice. Sailors and Marines are still subject to the same system on the operational level, which is where it counts in terms of outcome-determining due process.

These factors were thought proper for consideration by the pro-prospectivity plurality in Gosa v. Mayden, 413 U.S. 665, 93 S. Ct. 2926, 37 L. Ed. 2d 873 (1973). But the usual factor of the public interest in being protected from mass release of felons was present there also, to an indeterminate degree. May the Court properly play money changer with the integrity of the concept of jurisdiction, and with the usual rule of retrospectivity of decisions? It is a dangerous course yet the answer is necessarily yes. If a technical defect of jurisdiction were found which existed in every court-martial in the last century, the courts would not be required to bankrupt the government to pay homage to the traditional implications of a jurisdictional failure. That massive public expense may alone justify prospectivity is in the extreme case self-evident.

O'Callahan had held that Congress did not have the power under the Constitution to empower the military court system to try a member of the military for a non-service related crime if the defendant was not thereby accorded the usual Constitutional rights of trial by jury, indictment by a grand jury, et al. The decision in O'Callahan was couched in "jurisdictional" terms, and obviously does deal with a limitation upon the power of Congress. Yet, decisions holding that certain procedural safeguards must be accorded in certain contexts, do not fit comfortably within the traditional concept of jurisdiction, and are closer in many ways to the concept of jurisdiction-in-quotes which was elaborated on to some extent by Mr. Justice Douglas in his separate opinion in Gosa, and which is traceable more or less directly to the decision of Johnson v. Zerbst, 304 U.S. 458, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938).

In Gosa, the Fifth Circuit held O'Callahan not to be retroactive, using the usual test of Stovall v. Denno, 388 U.S. 293, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967). In Warner, the Second Circuit held that O'Callahan was retroactive because it involved a jurisdictional issue.

Although the four Justice plurality in favor of prospectivity spoke in its opinion of a "holding", their views were not in fact a holding. Four Justices favored retrospectivity on the basis that the issue involved was jurisdictional. Four Justices favored prospectivity after a Stovall v. Denno analysis. One Justice voted for further argument. It is true that the Fifth Circuit was affirmed in Gosa, and that the Second Circuit's result was reversed in Warner. But the vote on the crucial issue was a tie, and the Second Circuit was reversed because three Justices who did not vote for prospectivity found the Second Circuit case to involve a service related crime. If both cases had involved a clearly non-service related crime, both would have been affirmed on a 4-4 tie vote, with Justice Douglas voting for more argument. Exactly what will happen in the future is anybody's guess, literally.

If the relevant variable in the Supreme Court proves to be how clearly a given case concerns an issue of traditional jurisdiction, Greenwell will be held retroactive, for it involves more clearly what Blackstone would have called a jurisdictional issue than did O'Callahan. However Stovall v. Denno may be applied en grosse to an examination of jurisdictional issues, or, more likely, it may be adopted in a narrowed form. If the relevant variable proves to be an analysis based on the importance of the issue in the scheme of properly allocated and limited power, and its impact on outcome determination viewed in light of the dislocating impact of a holding of restrospectivity, then Greenwell should seriously be considered for prospective application, for it is more clearly a candidate for prospectivity on such an analysis than was O'Callahan.

This area of the law is currently in the early stages of evolution, and the proper course to follow is not clearly marked. It is a difficult area, and not without its dangers, both for the image of the judicial process in general, as has been noted quite persuasively by Professor Mishkin in his forward to the Harvard Review of the 1964 Supreme Court Term, 79 Harvard Law Review 56, and also to the vitality of jurisdictional limitations to protect us from arbitrary power. The Court does not believe that the test of Stovall v. Denno will be applied broadly to jurisdictional questions, but that ultimately some narrow and separate test will be so applied, and that jurisdictional questions will be allowed prospectivity in limited circumstances.

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